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SCA/16506/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16506 of 2010
=========================================================
CHANDRAKANT
BHAGWANJIBHAI POPAT - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
MR ASPI M
KAPADIA for
Petitioner : 1,
MS MONALI BHATT ASSTT GOVERNMENT PLEADER for
Respondents : 1-2, 4,
NOTICE SERVED BY DS for Respondents : 1, 3,
5,
MR MRUGEN K PUROHIT for Respondent : 3,
MR PRABHAV A MEHTA
with MR NIRAV A JOSHI for Respondent :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 09/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
petition is based upon the apprehension that respondent No.5 is
likely to take possession of land in excess of the land which is
acquired from the petitioner for the purpose of road. There is no
dispute about the fact that, out of the land bearing survey No.42/1
of village Magdalla, district Surat, 1827 sq. mtrs. of land is
acquired and, according to the petitioner, the remaining land of that
survey number belongs to and remains with the petitioner. It was
strenuously argued by learned counsel Mr.Kapadia that, by all
indications respondent No.5 was trying to take possession of
additional land without it being acquired in accordance with law and
the petitioner is likely to face permanent loss of the land belonging
to him.
2. As
against that, learned counsel Mr.Prabhav Mehta, appearing for
respondent No.5, pointed out from letter dated 08.5.2010 of Project
Director of respondent No.5 that no land from the land bearing
survey/block No.42/1 of village Magdalla is to be acquired at present
for the captioned project work as there was already 60 mtr. N.H.-
ROW (National Highway-Right of Work) available at the location. It
was further orally stated, on instruction, by learned counsel
Mr.Mehta that respondent No.5 was neither encroaching nor intending
to encroach upon the land which is not acquired by and for the
purpose of respondent No.5.
3. Admittedly,
there are questions of disputed facts regarding exact measurement of
the land in question and its location, which disputes could be
resolved only by fresh survey and measurement by an authorised
agency, such as District Inspector of Land Records (DILR), according
to the submission. Therefore, any dispute about the factual position
of the lands already acquired and the lands remaining with the
petitioner could only be resolved in the proper forum and alternative
remedies are available to the parties for that purpose. Under such
circumstances, this Court would not be justified in entertaining this
petition under Article 226 of the Constitution for deciding issues of
facts, if any are required to be resolved. Therefore, the petition is
dismissed, with the clarification that the parties would be at
liberty to approach the appropriate forum, i.e. the Civil Court of
competent jurisdiction, or make appropriate application for survey
and measurement of the land in question by DILR. Notice is
discharged with no order as to costs.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(
K.A.Puj, J.)
(KMG
Thilake)
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